In the
United States Court of Appeals
For the Seventh Circuit
Nos. 10-2052 & 10-2068
G ARRY B OYD ,
B OYD M EDICAL, INC.,
C HARLES W ETHERILL,
and A DDISON M EDICAL, INC.,
Plaintiffs-Appellees,
Cross-Appellants,
v.
T ORNIER, INC.,
Defendant-Appellant,
Cross-Appellee.
Appeals from the United States District Court
for the Southern District of Illinois.
No. 07 cv 751—Donald G. Wilkerson, Magistrate Judge.
A RGUED N OVEMBER 29, 2010—D ECIDED A UGUST 24, 2011
Before B AUER, W OOD , and SYKES, Circuit Judges.
W OOD , Circuit Judge. Tornier is a manufacturer of
medical goods related to joint replacement and soft
tissue repair. It has distributors all over the United
2 Nos. 10-2052 & 10-2068
States, including Boyd Medical, run by Garry Boyd,
(collectively “Boyd”) in Missouri and Addison Medical,
run by Charles Wetherill, (collectively “Wetherill”) in
Iowa. Both Boyd and Wetherill had exclusive distributor-
ship agreements with Tornier and relied heavily on that
relationship for their financial health. Tornier, sadly for
them, had other ideas and terminated its agreements
with each one. As with many breakups, somebody got
hurt. This time it was Boyd and Wetherill, both of
whom were forced to shut down their businesses.
Soon after, they sued Tornier for breach of contract,
intentional misrepresentation, and negligent misrepre-
sentation. Additionally, both asked for punitive
damages on the intentional misrepresentation claims.
The district court dismissed Wetherill’s negligent
misrepresentation claim at summary judgment but
allowed the other claims to proceed to trial. The jury
returned a verdict against Tornier on all of the remaining
claims, awarding both actual and punitive damages to
both plaintiffs. The magistrate judge, presiding by the
consent of the parties under 28 U.S.C. § 636(c), set aside
the punitive damages awards, finding that the evidence
did not support the jury’s decision. The court then
entered judgment for each distributor’s actual damages.
This appeal and cross-appeal followed. Tornier argues
that the contract expressly precludes the award of lost
profits for the breach of contract; that the plaintiffs’
intentional and negligent misrepresentation claims fail
as a matter of law and fact; and that the damages
awards on the tort claims were not adequately sup-
Nos. 10-2052 & 10-2068 3
ported by the evidence. Boyd and Wetherill counter that
the punitive damages awards should be reinstated.
We conclude that each side must win something and
lose something. We vacate the awards for the plaintiffs
of lost profits on their breach of contract action. We
affirm the verdicts against Tornier on intentional misrep-
resentation and negligent misrepresentation, but we
vacate the jury’s awards of actual damages, as they were
supported by insufficient evidence. Finally, we affirm
the court’s decision to set aside the punitive damages
awards. We thus remand the case to the district court
for a recalculation of damages consistent with this opinion.
I
In 2003, Tornier entered into exclusive distributorship
agreements with Boyd and with Wetherill. Each agree-
ment specified that the local agent was to be the only
authorized seller of Tornier products in its designated
regions. The agreements also demanded exclusivity for
Tornier: each distributor was restricted from selling
products that competed with Tornier products. As an
added layer of contractual protection, Tornier had the
right to set sales quotas for Boyd and Wetherill; if the
distributor did not meet the quotas, Tornier could termi-
nate the agreement. These arrangements were confined
to Tornier’s product markets; Boyd and Wetherill were
still free to sell non-competing, non-Tornier products.
The agreements included a Texas choice-of-law clause.
In truth, Tornier was not necessarily committed to
its existing model of exclusive distributors. At the same
4 Nos. 10-2052 & 10-2068
time as it was signing these agreements, it was crafting
alternative plans for its future expansion and growth.
One of Tornier’s ideas was to “capture” the distributors
so that they were selling only Tornier products. This
meant that Tornier needed to persuade its distributors to
drop the non-competing non-Tornier products and
become dedicated Tornier outlets. To this end, Tornier
told Boyd and Wetherill that it was going to acquire
some bigger and better products and give them exclu-
sive distribution rights in a solid long-lasting relation-
ship. At one point Tornier told Boyd that if Boyd
dropped the non-Tornier products, he would be Tornier’s
“guy in St. Louis.” To Wetherill, Tornier similarly prom-
ised that he was the “chosen one” in Iowa. Tornier also
promised Wetherill that Wetherill would get exclusive
distribution rights to Nexa, a popular orthopedic brand
that Tornier was soon going to acquire. Buoyed by
these lofty promises, Boyd and Wetherill each began to
prepare for their future with Tornier, by dropping some
of their other products and concentrating on Tornier’s.
But all was not as it seemed: Tornier was in fact not
pleased with either Boyd or Wetherill. Tornier had decided
internally that Boyd and Wetherill did not fit the new
business model it had devised for itself. Indeed, it had
already positioned alternative distributors to take over
for them. Tornier then hiked Boyd’s and Wetherill’s
2007 quotas to an unreasonable level—for Boyd, 56%
higher than the previous year, and for Wetherill, 82%
higher than the previous year. When Boyd and Wetherill
could not meet those expectations, Tornier cut them
from the team and brought in their replacements. By that
Nos. 10-2052 & 10-2068 5
time, Boyd and Wetherill had become financially depend-
ent on their relationships with Tornier and consequently
went out of business.
Boyd and Wetherill then sued Tornier for breach of
contract, intentional misrepresentation, and negligent
misrepresentation. In addition, they asked for punitive
damages in connection with their intentional misrep-
resentation theories. Invoking diversity jurisdiction, see
28 U.S.C. § 1332, they brought their action in the federal
court in the Southern District of Illinois. Tornier is a
Delaware corporation with its principal place of business
in Minnesota; Boyd and his company are citizens of
Missouri, and Wetherill and his company are citizens of
Iowa. Boyd’s tort claims are governed by Missouri law
and Wetherill’s by Iowa law. The breach-of-contract
claims are governed by Texas law, as stipulated in the
agreements’ choice-of-law clauses.
At summary judgment, the district court allowed the
breach-of-contract claims to proceed based on Tornier’s
unreasonable hiking of Boyd’s and Wetherill’s sales
quotas. It allowed the intentional misrepresentation
claims to go forward based on Tornier’s allegedly mis-
leading statements telling Boyd and Wetherill to drop
other product lines to ensure a promising relationship
with Tornier and promising Wetherill that Tornier
would grant him the distribution rights to the Nexa
brand. Finally, with regard to the negligent misrepre-
sentation counts (which were predicated on the same
statements as the intentional misrepresentation charges),
the district court allowed Boyd’s claim to proceed, but
6 Nos. 10-2052 & 10-2068
it dismissed Wetherill’s claims because Iowa law limits
such claims to attorneys, accountants, and other profes-
sionals in the business of guiding others in their affairs.
At trial, the jury returned a verdict against Tornier on all
of the claims that had survived summary judgment,
awarding $1,491,000 in actual damages for Boyd and
$1,100,000 in actual damages for Wetherill. The jury also
gave Boyd and Wetherill $2 million each in punitive
damages. In response to Tornier’s post-trial motions
under Federal Rules of Civil Procedure 50(b) and 59(e),
the magistrate judge upheld the jury verdicts on the
misrepresentation claims, set aside the punitive damages,
and entered judgment for the actual damages. All parties
timely appealed.
II
A
We begin by discussing Tornier’s argument that the
court erred when it upheld the jury’s award of lost
profits for each plaintiff’s breach of contract claims. We
review the denial of Tornier’s motion to alter the judg-
ment for abuse of discretion, noting that for relief under
Rule 59(e) the movant must demonstrate a manifest error
of law or fact or present newly discovered evidence.
F ED . R. C IV. P. 59(e); Kapelanski v. Johnson, 390 F.3d 525,
530 (7th Cir. 2004); County of McHenry v. Insurance Co. of
the West, 438 F.3d 813, 819 (7th Cir. 2006).
The Tornier Agency Agreement signed by both plain-
tiffs addressed the subject of lost profits in a manner that
Nos. 10-2052 & 10-2068 7
is not helpful to the plaintiffs. Article 9.6, which was
identical in the two agreements, says, “Upon termination
of this Agreement, neither party shall be liable to the
other for any loss of profits of any kind or nature sus-
tained or arising out of such termination.” Despite this
language, the court upheld the jury’s decision to award
one year’s lost profits for both Boyd and Wetherill. In so
doing, it relied on a principle of Texas law to the effect
that a contractual limitation on damages may not be
enforced when a disparity of bargaining power ex-
ists—i.e., when one party has no real choice in accepting
the agreement limiting the liability of the other party.
Federated Dep’t Stores, Inc. v. Houston Lighting & Power
Co., 646 S.W.2d 509, 511-12 (Tex. App. 1982). The court
reasoned that the question whether this kind of im-
balance of power existed was one of fact and thus for
the jury. See id. (stating that the existence of this
disparity is a question of fact). The jury in turn found the
necessary disparity. We conclude, to the contrary, that
on this record the jury should never have been asked
to make this determination.
Boyd and Wetherill point to little that indicates a sub-
stantial disparity in bargaining power. They state that
they were both dependent on Tornier’s business and
that they had been unable to negotiate contractual terms
before, but if that is enough to meet the Texas rule, then
the state might as well have outlawed the topic of
damage limitations for private orderings—and it has not
done so. Neither of these statements tells us much about
the bargaining dynamic. The mere fact that Tornier
was firm in negotiation does not indicate substantially
8 Nos. 10-2052 & 10-2068
unequal bargaining power. Moreover, Boyd and Wetherill
were both selling non-Tornier products. It may be that
over time they became dependent on Tornier, but both
were sophisticated businesses and their resulting finan-
cial dependence was the product of their choices.
They protest that they were fraudulently manipulated
by Tornier and thus any apparent element of choice was
illusory, but that is a different point. There is no neces-
sary correlation between disparity in size and ability of
one party to defraud another. We recognize that, in the
appropriate case, fraudulent statements may vitiate a
contracting party’s real choice and alter the party’s
access to information, and in that way create some kind
of power disparity. But we do not think that this is
such a case. As we will see below, Boyd and Wetherill
were led astray, much to their detriment, by Tornier’s
falsehoods, and for this they will receive compensation.
At the same time, they were successful distributors,
with access to Tornier’s competitors and other similarly
situated companies. They had the choice of rejecting
Tornier’s demands, of driving a harder bargain, or of
diversifying their own businesses in a way that
preserved Tornier’s exclusivity in the medical devices
market. They chose instead to accept Tornier’s terms,
and, at least for purposes of their contract theories, that
is the contract with which they must contend.
There is little else to say about the award of lost-profits
damages. Article 9.6 specifically excludes this form of
relief. Neither plaintiff has offered any other reason why
its lost-profit award does not fall within the scope of
Nos. 10-2052 & 10-2068 9
that article. We therefore conclude that these damages
must be set aside.
B
We turn now to Tornier’s arguments that the the plain-
tiffs’ misrepresentation claims should have been rejected
both on the law and as a matter of fact. We review the
court’s denial of Tornier’s post-trial motion for judg-
ment as a matter of law de novo, viewing the evidence in
the light most favorable to the nonmoving parties,
Boyd and Wetherill. Liu v. Price Waterhouse LLP, 302
F.3d 749, 754 (7th Cir. 2002). If any reasonable jury could
have reached the same conclusion, then the motion
was properly denied. Id.
Under both Missouri and Iowa law, to establish a
claim of intentional misrepresentation, one must show:
(1) there was a false, material representation; (2) the
speaker knew of its falsity; (3) the speaker intended
to deceive; (4) the hearer justifiably relied on the repre-
sentation being true; and (5) damages. Murray v. Crank,
945 S.W.2d 28, 31 (Mo. App. 1997); City of McGregor v.
Janett, 546 N.W.2d 616, 619 (Iowa 1996). The jury found
that Tornier made three intentional misrepresenta-
tions—one to Boyd and two to Wetherill. The first
occurred when Tornier told Boyd that if he dropped
other non-Tornier product lines that Boyd was carrying,
he could look forward to a long, productive relation-
ship with Tornier; the second involved the same promise
to Wetherill; and the third was Tornier’s promise to
give Wetherill an exclusive distributorship for the
10 Nos. 10-2052 & 10-2068
Nexa product line. Tornier argues that these findings
must be rejected because Boyd and Wetherill have failed
to establish two essential elements: justifiable reliance
on the part of Boyd and Wetherill, and Tornier’s knowl-
edge that the statements were false.
Tornier first argues that Boyd and Wetherill took no
action in reliance on the statements. Though Boyd and
Wetherill both dropped other non-Tornier product
lines, Tornier asserts that they did so for reasons
unrelated to the alleged misrepresentations. But there
was evidence to the contrary in the record. Garry Boyd
testified that after Tornier had made its promises to him
he dropped the Alphatech and Exactech product lines,
both non-Tornier products, in order to focus on the
Tornier brands. Similarly, Charles Wetherill testified
that he dropped the Exactech product line and did not
pursue opportunities with two other companies, Integra
LifeSciences and Depuy Orthopaedics, in reliance on
Tornier’s promises. Furthermore, Wetherill hired a sales-
man to focus on Nexa sales. A reasonable jury could
have found that these facts established justifiable reliance.
Tornier responds that even if Boyd and Wetherill
relied on its promises, they did so unjustifiably. Tornier
asserts that its representations to Boyd and Wetherill
were expressly conditional: it said only that if they
dropped all other non-Tornier product lines, there
would be a long, stable relationship awaiting them.
Since neither Boyd nor Wetherill dropped all of their
non-Tornier product lines, neither fulfilled the condition
of the promise. Thus, there was no justifiable reliance.
Nos. 10-2052 & 10-2068 11
Unfortunately for Tornier, the evidence does not
support this story. Boyd testified that he was told that
he should “[f]ocus on Tornier,” in exchange for the prom-
ised benefits. Similarly, Wetherill testified that he was
supposed to “envision what [Tornier’s] business plan
was” and drop lines that may compete. Nothing in
either Boyd’s or Wetherill’s testimony indicates that
they were required to drop every single non-Tornier line
in order to qualify for a long-term relationship with
Tornier. A reasonable jury could have credited Boyd’s
and Wetherill’s account of the scope of the commit-
ment Tornier was seeking and thus conclude that both
Boyd and Wetherill justifiably relied on Tornier’s promises
when they dropped some non-Tornier brands and fore-
went other opportunities.
Tornier also argues that the evidence is not sufficient
to permit the jury to find that Tornier knew at the time
it made its promises that they were false. All of the evi-
dence, it asserts, is equally consistent with good-
faith promises, subsequently changed plans, and thus
at most a failure to perform in accordance with those
promises. In response, Boyd and Wetherill point to the
fact that at the same time it was talking to them, Tornier
was quietly positioning alternative distributors in
their regions. Even more telling was the evidence
showing that Tornier insiders had discussed Boyd’s and
Wetherill’s lack of “fit” with its business model before
the misrepresentations were made. This provides suffi-
cient, maybe even compelling, reason for finding that
Tornier knew at the time it spoke that the promises
were false, as it indicates that Tornier had no intention
12 Nos. 10-2052 & 10-2068
of pursuing a long-term relationship with either Boyd or
Wetherill. Tornier protests that, as part of its business
strategy, it had set up substitutes for all of its dis-
tributors, not only Boyd and Wetherill. This does little
to persuade. If it was behaving duplicitously with the
other distributors, then it sounds like an assertion that
lots of lies are better than a few. If it was not leading
the others on, then its plans for them are immaterial.
In light of the evidence presented in this case, a rea-
sonable jury could have rejected Tornier’s explanation
and found instead that Tornier knew its promises were
false. In short, we conclude that there was sufficient
evidence to affirm the jury’s verdicts against Tornier on
all three intentional misrepresentation claims.
The jury also found for Boyd on the theory of
negligent misrepresentation based once again on Tornier’s
promise of a future close relationship. In Missouri, “[t]he
elements of negligent misrepresentation are: (1) the
speaker supplied information in the course of his
business; (2) because of the speaker’s failure to exercise
reasonable care, the information was false; (3) the informa-
tion was intentionally provided by the speaker for the
guidance of limited persons in a particular business
transaction; (4) the hearer justifiably relied on the infor-
mation; and (5) due to the hearer’s reliance on the infor-
mation, the hearer suffered a pecuniary loss.” Renaissance
Leasing, LLC v. Vermeer Mfg. Co., 322 S.W.3d 112, 134
(Mo. 2010). “ ‘[O]ne who, in the course of his business,
profession or employment, or in any other transaction
in which he has a pecuniary interest, supplies false infor-
mation for the guidance of others in their business trans-
Nos. 10-2052 & 10-2068 13
actions, is subject to liability for pecuniary loss caused
to them by their justifiable reliance upon the informa-
tion, if he fails to exercise reasonable care or com-
petence in obtaining or communicating the information.’ ”
CADCO, Inc. v. Fleetwood Enters., Inc., 220 S.W.3d 426, 438-
39 (Mo. App. 2007) (quoting R ESTATEMENT (Second)
OF T ORTS, § 552(1) (1977)).
Tornier argues that implicit in the first element is a
limitation of this tort to attorneys, accountants, and
other professionals whose business it is to give others
guidance in their affairs. Tornier is not involved in
the business of providing guidance to people in their
business pursuits—it manufactures medical devices.
Thus, Tornier argues, it cannot be liable for negligent
misrepresentation. Tornier acknowledges that no
Missouri court has so ruled; nevertheless, Tornier
invites us to take that step. Other states have done so,
it points out; indeed, it was for this reason that Iowa
law barred Wetherill’s negligent misrepresentation claim.
Federal courts are not in a position to innovate when
state law provides the rule of decision. Although it is
certainly possible that Missouri some day might want to
follow states like Iowa, we conclude that it has not yet
done so. The Missouri courts, adopting the Restatement’s
view, state that one “who, in the course of his business,
profession or employment, or in any other transaction
in which he has a pecuniary interest” may be liable for negli-
gent misrepresentation. Even though Tornier is not in
the business of providing guidance, its negligent mis-
representation was part of a transaction in which it
14 Nos. 10-2052 & 10-2068
had a pecuniary interest. That is enough, under the Mis-
souri cases we have found; they do not require the defen-
dant to be in the business of giving guidance to others. For
example, in CADCO, Inc., a Missouri appellate court
upheld a verdict finding a mobile home manufacturer
guilty of negligent misrepresentation in its transaction with
a dealer. 220 S.W.3d at 439. The manufacturer told the
dealer that it would be allowed to sell a particular model
and then reneged. Id. Though the appeal in CADCO, Inc.
primarily concerned damages, the court found that all the
elements of the tort had been met. Id. Since Missouri takes
a broader view of negligent misrepresentation than Tornier
suggests, and the evidence supported the jury’s conclusion
in favor of Boyd, we reject Tornier’s effort to set aside
this part of the verdict.
C
Finally, we reach the topic of tort damages, about which
both sides have something to say. Tornier asserts that
the award of actual damages was not supported by suffi-
cient evidence. As this was part of Tornier’s Rule 59(e)
motion to alter the judgment that the district court
denied, our review is once again only for abuse of dis-
cretion. The jury’s awards of actual damages for the
plaintiffs included lost profits for six years and
assumed a growth rate of 20% per year for both Boyd
and Wetherill. Tornier argues that the awards should
be limited to one year’s lost profits, as the distributorship
contracts were only for one-year terms. In addition, it
argues that even if the awards in theory can go beyond
Nos. 10-2052 & 10-2068 15
one year, the evidence here of actual damages did not
support such an extension.
Both Missouri and Iowa allow lost profit damages in tort
to exceed the term of the contract if the misrepresenta-
tion included promises of an ongoing, lasting relation-
ship. Jacobs Mfg. Co. v. Sam Brown Co., 19 F.3d 1259, 1264
(8th Cir. 1994) (applying Missouri law); Robinson v. Perpet-
ual Servs. Corp., 412 N.W.2d 562, 566-67 (Iowa 1987). As we
have already established, the jury here was entitled to
conclude that Tornier fraudulently promised Boyd and
Wetherill an ongoing, lasting relationship. In principle,
therefore, Boyd and Wetherill could recover beyond
the one-year terms of their contracts.
Nevertheless, any such damages would have had to
find support in the evidence. A plaintiff cannot recover
for damages that are speculative or uncertain. Though a
plaintiff will not be denied recovery merely because
the amount of damages is difficult to ascertain, there
must be a reasonable basis in the record from which the
amount of damages can be inferred or approximated.
Coonis v. Rogers, 429 S.W.2d 709, 714 (Mo. 1968); Robinson,
412 N.W.2d at 567.
No such reasonable basis is present here. The assump-
tion that Boyd and Wetherill would sustain 20% annual
growth for six consecutive years was buttressed by
little more than conjecture and hope. Boyd and Wetherill
offered as evidence their own testimony and the testi-
mony of expert witness John Kaelblein. Wetherill testi-
fied that the basis for his 20%-growth assumption
was that this was the industry standard. Boyd echoed
16 Nos. 10-2052 & 10-2068
this view on the industry’s standard growth and added
that his company would grow by 20% as that was his
commission percentage. But the latter point about his
commission says nothing about his company’s growth.
There is no obvious correlation between growth and
commission percentage. Indeed, one might cultivate a
company’s growth by taking a smaller commission and
reinvesting in the company; conversely, one could
inhibit growth by gobbling up profits through a high
commission that depletes the company’s financial re-
sources. As for Boyd’s and Wetherill’s speculation
about standard growth in the industry, the testimony of
their own expert contradicted their assertions. At the
trial held in 2009, Kaelblein testified that he thought
that all medical companies would grow at significantly
less than 20% for three years and that 20% growth was
not sustainable, especially given the then-sluggish state
of the economy. This is simply not enough evidence
to support a jury finding that the plaintiffs’ businesses
would have grown at a steady rate of 20% per year for
six years.
In addition to the actual damages, the jury awarded
Boyd and Wetherill $2 million each in punitive damages.
In the district court, Tornier argued that there was
no evidentiary basis for the awards and moved to set
them aside. The magistrate judge agreed and granted
Tornier’s motion for judgment as a matter of law on
the requests for punitive damages. In their cross-appeal,
Boyd and Wetherill challenge this determination; they
insist that Tornier’s conduct was reckless with respect
to the grave financial consequences they ultimately suf-
Nos. 10-2052 & 10-2068 17
fered, and this was enough to show legal malice.
Our review is under the familiar de novo standard, viewing
the evidence most favorably to nonmovants Boyd and
Wetherill. Medcom Holding Co. v. Baxter Travenol Labs., Inc.,
106 F.3d 1388, 1402 (7th Cir. 1997).
Punitive damages may be awarded only upon a
showing of outrageous conduct that demonstrates actual
or legal malice. Jefferson v. American Fin. Group, Inc., 163
S.W.3d 485, 488 (Mo. App. 2005); Peters v. General Motors
Corp., 200 S.W.3d 1, 24 (Mo. App. 2006); Van Sickle Const.
Co. v. Wachovia Commercial Mortgage, Inc., 783 N.W.2d 684,
689 (Iowa 2010). Actual malice may be shown by spite,
hatred, ill will, or vindictive motives. Van Sickle Const. Co.,
783 N.W.2d at 689-90; Bramon v. U-Haul, Inc., 945 S.W.2d
676, 684 (Mo. App. 1997). Legal malice may be shown
by reckless indifference for an act’s consequences. Oster
v. Kribs Ford, Inc., 660 S.W.2d 348, 355 (Mo. App. 1983);
Van Sickle Const. Co., 783 N.W.2d at 690. These standards
are not to be taken lightly: punitive damages are an
extraordinary measure, to be applied sparingly. Artilla
Cove Resort, Inc. v. Hartley, 72 S.W.3d 291, 296 (Mo. App.
2002). Merely objectionable conduct is insufficient to
sustain a punitive damages award. Wolf v. Wolf, 690
N.W.2d 887, 893 (Iowa 2005).
The district court correctly ruled that this record did not
support punitive damages against Tornier. Tornier en-
gaged in tortious behavior, but there was no evidence
that its behavior was with any kind of malice—actual or
legal. Nothing indicates that Tornier bore ill will or
hatred towards them, nor does the evidence show legal
18 Nos. 10-2052 & 10-2068
malice. Tornier engaged in a fraudulent business strategy
with sophisticated business partners. It may have
realized that Boyd and Wetherill could be affected finan-
cially by its misrepresentations, but it was acting in the
business arena with parties that were capable of pro-
tecting themselves. This falls short of reckless indiffer-
ence. Moreover, though tortious and objectionable,
Tornier’s conduct was not outrageous. Bad consequences
resulted for Boyd and Wetherill, and they will be com-
pensated for their losses. Punitive damages, however,
would both over compensate Boyd and Wetherill and
unnecessarily punish Tornier. We thus affirm the
district court’s decision to set aside the punitive damages
awards.
* * *
We V ACATE the award of lost profits on the breach of
contract action. We A FFIRM the verdicts against Tornier
on intentional misrepresentation and negligent misrepre-
sentation, but we V ACATE the jury’s award of actual
damages. Finally, we A FFIRM the order setting aside
the punitive damages awards. The case is R EMANDED to
the district court for a recalculation of damages con-
sistent with this opinion. Each side is to bear its own costs.
8-24-11